Welcome to Texas justice: You might beat the rap, but you won't beat the ride.

Wednesday, September 28, 2011

Your afternoon criminal justice reading list

Here are a few odds and ends that deserve Grits readers' attention, though I don't have time to discuss each story today as thoroughly as one might like:

Buyer of empty private prison backs out of dealTexas Prison Bidness reports that the online sale of the Billy Clayton Detention Facility in Littlefield has fallen through - further evidence that the private prison boom in the state has gone bust.

Supervisors punished for whitewashing DWI by on-duty officer who hit school bus
Houston PD disciplined seven officers including an assistant chief in the wake of an HPD officer driving drunk on his way to work who crashed into a school bus. (See earlier Grits coverage.) It's highly unusual to see police supervisors punished for covering up misconduct by their underlings, but doing so is the only way to keep it from happening.

Video testimony won't satisfy confrontation requirements
Liberty and Justice for Y'all informs us of an important decision from the Texas Court of Criminal Appeals strengthening the confrontation clause requirement in child sex abuse cases. The CCA held that using videotaped testimony and written interrogatories from a child sex abuse victim did not satisfy Confrontation Clause requirements under the Supreme Court's recent Crawford decision, declaring, "We are unable to find any post-Crawford precedent from any jurisdiction that states, or even suggests, that a list of written interrogatories, posed by a forensic examiner to a child in an ex parte interview, is a constitutional substitute for live cross-examination and confrontation...There was no "rigorous adversarial testing" of [the child victim's] testimonial statements by that greatest legal engine for unconvering the truth: contemporaneous cross-examination. The written-interrogatories procedure used in this case does not pass muster under our English common-law adversarial system or our United States Constitution."

Court of Criminal Appeals reduces sentence for cattle rustler
In another rare pro-defense ruling from the CCA, reports KWTX-TV, "The Texas Court of Criminal Appeals ruled Wednesday that a convicted cattle rustler who insisted he's been wrongly kept in prison beyond his sentence has served his time and should be released next month."

Corpus Christi "officer of the month" targeted in civil rights suitTexas Watchdog reports that a recent "officer of the month" at Corpus Christi PD is also the subject of a civil rights lawsuit alleging "unlawful arrest, using excessive force and assault and battery." See a more detailed account of the federal suit from the Courthouse News Service.

Grotesque consequences from alleged medical neglect in Galveston jail
The Southeast Texas Record has the story of a lawsuit from a paralyzed inmate who suffered a staph infection in the Galveston County Jail, which went untreated until the inmate was transferred to TDCJ. "According to the suit, a state-designated doctor's apparent neglect to properly treat Eubanks resulted in the complainant being taken to the University of Texas Medical Branch in Galveston where physicians removed his legs, a testicle and his rectum." Yikes!

Are county jails the answer for CA prison overcrowding, or more of the same?
As California shifts state prisoners to county jails to comply with a federal court order, the Los Angeles County Jail has come under fire for conditions that in some ways are worse than those in state facilities. See overage in the New York Times and a new report (pdf) on the subject from the Southern California affiliate of the ACLU.

Changes to sentencing laws make prosecutors nearly all-powerful
A recent front page article from the New York Times titled "Sentencing shift gives new leverage to prosecutors" describes trends familiar to Grits readers: "After decades of new laws to toughen sentencing for criminals, prosecutors have gained greater leverage to extract guilty pleas from defendants and reduce the number of cases that go to trial, often by using the threat of more serious charges with mandatory sentences or other harsher penalties." Further, “'We now have an incredible concentration of power in the hands of prosecutors,' said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that 'in the wrong hands, the criminal justice system can be held hostage.'”

Death penalty myopia and life without parole
Doug Berman at Sentencing Law & Policy has a terrific post up that argues, IMO rightfully, that myopic focus on the death penalty by partisans obscures debates about excessive use of life without parole sentences. I couldn't agree more. In another post, Berman endorses the view put forth by New York Times columnist Ross Douthat which argues that "a lifelong prison sentence can prove more cruel and unusual than a speedy execution. And a society that supposedly values liberty as much or more than life itself hasn’t necessarily become more civilized if it preserves its convicts’ lives while consistently violating their rights and dignity. It’s just become better at self-deception about what’s really going on."

Forensic science for judges
Today, thanks to the generosity of Grits contributors, I ordered a new (and a little expensive, at $80) book for judges from the National Research Council - the 3rd edition (and the first update since 2000) of the "Reference Manual on Scientific Evidence." I'm looking forward to see what advice is given to judges on forensic science topics in the wake of reevaluations by the National Academy of Sciences and others of traditional but non-science-based forensic methods. You can read the book online here, but at nearly 900 pages that method seemed a little onerous so I sprung for a hardcopy. More on this later, I'm sure.

11 comments:

In regard to the child testimony case, even before Crawford this procedure would have been highly suspect. Maryland v. Craig allowed for leeway in examination but this goes far beyond what was allowed there and with Crawford and the other confrontation cases that have been handed down in the meantime I am not at all certain even Craig would survive today.

This has been occurring in Texas for at least 15 years. Unfortunately, there are many people who take pleas only because they were afraid of all the costs they would incur for going to trial. Make no mistake, offenders are made aware of this fact by their defense attorney, appointed or retained. Sad but true, you are more likely to plea guilty to something because of financial ability rather than your guilt or innocence. In addition to the stanglehold used by prosecution, the fact that evidence is misused, witheld, or fabricated, a person quickly sees that this article is only scratching the surface. Even more scary in Texas is the sick relationship between prosecution and law enforcement. Prosecutors drag their ass on prosecuting law enforcement because they are in bed with them. When they actually do prosecute law enforcement, prosecution made a cand-ass deal behind the scenes. Totally different approach than the one used with citizens. I think this legislation is absolutely going in the wrong direction and can only assume the state mentioned is getting ready to build a hell of a lot of prisons. Sounds like the ACLU has gone to sleep at the wheel... Defense attorneys, appointed or retained, need to work with a little bit of conviction rather than just taking the money and running.

This is what happens when you have a popularly elected "high sheriff" with absolute total authority in a jail. They pretty much can do whatever they want within the jail. Need an ombudsmen system in the local jail systems similar to what was put in the juvenile system/TYC. Its quite possible that if the truth was exposed the general public would be shocked at the abuse/neglect that is occurring in local jails. Some are holding to a higher standard but most need to be cleaned up or closed. The sheriff, not a (scapegoated)jailer, should be prosecuted civilly and criminally to instill accountability for piss poor jail administration.

Also, Keller's dissent in Coranado is particularly unimpressive. It basically comes down to "Craig is still good law, so this case is fine", despite the huge differences between Craig and the procedure used in Coranado.

Actually, I could see videotaped testimony being fine under some circumstances. At least for being presented to a jury. For example, it is fine to read the prior in court testimony of a witness at a later trial if the witness dies in the meantime because the defendant had an opportunity to fully examine the witness at the prior proceeding and the witness is now unavailable. I see nothing about that situation that preclude using videotape instead of a court officer reading back the transcript. In fact I would think using a video recording would be preferable because that would show the demeanor of the witness at the time they were testifying. I do have some issues with such a procedure because there is no way to impeach the now unavailable witness with newly available information, I'm not sure how courts would handle such a situation.

But that is quite a bit different from the problems with Coranado, where the entire right of examination was dispensed with, not just the right face to face confrontation (and even on that I think Scalia was right). The witness was not under oath, the witness was not in the presence of even the court officials and the defense was not offered a chance to place questions directly to the child. This was not testimony no matter that the material was testimonial, and thus the majority was emphatically correct that the procedure used is invalid.

"Actually, I could see videotaped testimony being fine under some circumstances. At least for being presented to a jury. For example, it is fine to read the prior in court testimony of a witness at a later trial if the witness dies in the meantime because the defendant had an opportunity to fully examine the witness at the prior proceeding and the witness is now unavailable."

I do have a problem with it. UNLESS the state can prove the reason the witness it not there is the defendant killed them! Otherwise it's STILL a violation of their right to face their accuser in court!

just like if i take the govt or a big company to court and they do like usual and postphone the case for YEARS and DECADES HOPING AND PRAYING i DIE BEFORE IT SEES A JUDGE....case is OVER! this is no different.

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